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POSSESSION IS NECESSARY TO SUCCEED FOR ACTION OF TRESPASS

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In order to succeed in an action of trespass to land, plaintiff must prove and have present exclusive possessory title i.e. he must be in exclusive occupation.

– Obaseki, JSC. Ekpan v. Agunu (1986)

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trespass to land

CLAIM FOR TRESPASS COUPLED WITH INJUNCTION PUTS TITLE OF PARTIES IN ISSUE

It is an elementary principle of law that whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue. See Akintola v. Lasupo (1991) 3NWLR (Pt.180) 508 at 515; Abotche Kponuglov. Kodadja(1933)2W ACA24; Okorie v. Udom (1960) 5 FSC 162, (1960) SCNLR 326; The Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (PU58) 514. The position is even much stronger where, as in the present action, the plaintiff claims a declaration that he is the person entitled, as against the defendant, to occupation and possession of the piece or parcel of land in dispute. The present action involves not only damages for trespass and perpetual injunction, but a declaration as to the plaintiff’s entitlement to the occupation and possession of the land in dispute. It cannot be doubted, in these circumstances, particularly having regard to the pleadings filed in the suit and the evidence of the parties, that the title of the parties to the land in dispute is what is primarily in issue in the case. This is simply because the law is well settled that when the issue is as to which of two claimants has a better right to the possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title thereto. See Aromire v. Awoyemi (1972) 1 All NLR (PU) 10 at 12 Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263 etc. In the same vein, where two parties are on land claiming possession, the possession being disputed, trespass can only be at the suit of that party who can show that title of the land is in him. See Awoonor Renner v. Daboh (1935) 2 WACA 258 at 259 and 263 Umeobi v. Otukoya (1978) 4 SC 33.

— Iguh, JSC. Olohunde v. Adeyoju (2000) – SC.15/1995

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TRESPASS TO LAND IS ROOTED ON EXCLUSIVE POSSESSION

Amakor v. Obiefuna (1974) 1 All N.L.R. (Part 1) at page 128 saying:- “Generally speaking, as a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, of the land in dispute. But once a defendant claims to be the owner of the land in dispute title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant.”

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SUBJECT TO LIMITATION LAW, AN OWNER MAY NOT WARN A TRESPASSER IN HIS LAND

There is no duty on a person having estate or interest in land or other property for that matter to raise protest against a trespass or encroachment on the property or invasion of his right on same if he has no reason to believe that such a trespasser, encroacher or invader mistakenly conceives himself to be acting lawfully because in such a situation there cannot be said to be any misrepresentation, delusion or inaction from the owner’s part, encouraging or fostering the trespasser in expending money by developing the property. There is nothing to stop the owner from asserting his right against the trespasser at any time however that may be, subject to any applicable statutory provision of limitation.

– Wali JSC. Kayode v. Odutola (2001)

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RATIONALE BEHIND TRESPASS TO LAND – WHERE AN ACT NOT SUPPORTED BY LAW

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted by the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

— Lord Camden in Entick v Carrington [1765] EWHC KB J98

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ONE ALLEGING TRESPASS IS TO PROVE TRESPASS

Accordingly, where one in possession of land is said to be a trespasser, the onus is on the person asserting such an allegation to establish that he has a better title to the land than the person in possession. See Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67. (1974) 1 All NLR 119 OR (1974) NMLR 331. It will now be necessary to ascertain whether the appellant was able to prove a better title to the land in dispute than the 1st respondent.

— Iguh, JSC. Kyari v Alkali (2001) – SC.224/1993

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A PARTY NEED NOT PROVE TITLE TO BE ENTITLED TO DAMAGES FOR TRESPASS OF LAND

It is a correct statement of law that a claim in trespass is not dependent on proof of title to land. A plaintiff who fails to prove title may not necessarily fail in his action for trespass. If he establishes by evidence acts of exclusive possession, his claims for damages for trespass and an order of injunction may be granted: see Oluwi v. Eniola (1967 ) N.M.L.R 339 at 340; Olaloye v. Balogun (1990) 5 N.W.L.R. (Pt. 148) 24 at 39 – 40, Ajero v. Ugorji (1999) 10 N.W.L.R. (Pt. 621) 1 at 11, Amakor v. Obiefuna (1974) 1 All N.L.R. 119 at 126.

— Edozie JSC. Cosm As Ezukwu v. Peter Ukachukwu Jude Ukachukwu (SC. 160/2000, 2 July 2004)

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